This week, I participated in a Federalist Society teleconference call on the Third Circuit’s recent en banc arguments over New Jersey’s efforts to repeal its prohibitions against sports gambling. That call has since been released as a podcast and is available here.
As you may recall, PLF (along with the Cato Institute) filed an amicus brief asking the Supreme Court to take up a challenge to New Jersey’s first legalization effort, which was stymied by a federal law (the Professional and Amateur Sports Protection Act) that forbids states, except Nevada, from licensing or authorizing sports gambling. The case raised two issues: (1) whether the 10th Amendment’s “anti-commandeering” doctrine — which forbids the federal government from ordering states to implement federal policy — bars the federal government from forcing states to maintain laws on the books to further federal policy; and (2) whether the equal sovereignty doctrine — which forbids the federal government from regulating states differently — applies to exercises of the Commerce Clause. Unfortunately, the Court passed on the opportunity.
However, New Jersey didn’t give up on its goal. Instead, it availed itself of the Third Circuit’s holding in the first case, that the state was forbidden from affirmatively authorizing and licensing sports gambling, but was free to repeal its prohibitions in whole or in part. In 2014, the state repealed its prohibitions to the extent that they apply to bets placed by those over 21 and in casinos or racetracks. Despite the court’s earlier pronouncement, the state was sued again and the repeal effort was enjoined by a federal court.
On February 17th, the Third Circuit heard the case en banc, meaning that the whole court will have an opportunity to reconsider the decisions in both challenges. If you’d like to hear my thoughts on the oral argument, you should should have a listen!